Case Note & Summary
The appeal arose from a judgment of the High Court affirming the conviction of the appellant for two murders under Section 302 read with Section 34 of the Indian Penal Code, 1860. The appellant, along with four others, was tried by the Additional Sessions Judge, Amritsar for rioting, committing murders, and attempting to commit murders. The trial court convicted the appellant and his brother Sukhwinder Singh under Section 302 read with Section 34 IPC on two counts and sentenced each to life imprisonment and fine, while acquitting the other three accused. The High Court affirmed the appellant's conviction but acquitted Sukhwinder Singh. The appellant then appealed to the Supreme Court by special leave. The prosecution case was that on October 27, 1979, a dispute arose over dismantling of a water course. The acquitted accused Sukhwinder Singh was preparing a path to his behak by dismantling the water course of the deceased and his brothers. An exchange of abuses led to a later confrontation near the janj ghar, where the accused, including the appellant, fired rifles. Surjit Singh was shot by absconding accused Joginder Singh, and Sukhdev Singh was shot by the appellant and Sukhwinder Singh. Both deceased died. The trial court relied on the evidence of eyewitnesses PW4 and PW6 and also used the testimony of defence witness DW5 to corroborate their testimony against the appellant. The appellant's counsel raised three main contentions. First, that the courts below could not rely on the same eyewitness evidence that was found unacceptable against other accused. Second, that the prosecution could not use the defence witness DW5's evidence to convict. Third, that after the acquittal of Sukhwinder Singh, Section 34 IPC could not apply, and the appellant could not be convicted under Section 302 IPC because the fatal injuries were caused by Sukhwinder Singh's shot, not his. The Supreme Court held that the trial court had given benefit of doubt to the other accused but had not found the eyewitnesses totally false, so their evidence could be used against the appellant. It held that the defence witness's evidence was used only to lend assurance to conclusions already drawn from prosecution witnesses, which was permissible, and the prosecution could not rest its case solely on defence evidence. On the third contention, the Court examined the medical evidence of Dr. Vaid (PW5) and found that the fatal injury to Sukhdev Singh was caused by the shot fired by Sukhwinder Singh, while the appellant's shot caused injuries No.2 and 3, which were non-fatal. Since Sukhwinder Singh was acquitted, Section 34 IPC could not be invoked, and the appellant could be liable only for his own act. Therefore, the appellant could not be convicted for murder under Section 302 IPC but was guilty of attempt to murder under Section 307 IPC. The Supreme Court partly allowed the appeal, set aside the conviction under Section 302 IPC, convicted the appellant under Section 307 IPC, and sentenced him to ten years rigorous imprisonment, directing him to surrender.
Headnote
A) Criminal Law - Appreciation of Evidence - Partial rejection of eyewitness testimony - Indian Penal Code, 1860, Sections 302, 307, 34 - The trial court acquitted three co-accused by giving benefit of doubt, not on a finding that eyewitnesses were totally false, hence their evidence could be relied upon against the appellant. Held that partial rejection does not render entire testimony unreliable, and conviction can be based on same evidence for others. (Paras 1-4) B) Criminal Law - Use of Defence Witness Evidence - Corroboration - Indian Penal Code, 1860, Sections 302, 307, 34 - Defence witness DW5's evidence was used only to lend assurance to conclusions already drawn from prosecution witnesses, not as sole basis; such use is permissible even if DW5 was examined for co-accused. Held that prosecution cannot base conviction solely on defence evidence if prosecution evidence discarded, but corroboration is allowed. (Paras 1-4) C) Criminal Law - Constructive Liability - Section 34 IPC - Indian Penal Code, 1860, Section 34 - After acquittal of co-accused Sukhwinder Singh, Section 34 could no longer apply; appellant liable only for his own act. Held that appellant cannot be convicted under Section 302 IPC for death caused by injuries attributed to co-accused's fatal shot. (Paras 1-4) D) Criminal Law - Offence of Attempt to Murder - Section 307 IPC - Indian Penal Code, 1860, Section 307 - Fatal injury to deceased was caused by shot fired by acquitted co-accused; appellant's shot caused non-fatal injuries No.2 and 3; therefore appellant guilty of attempt to murder, not murder. Held conviction altered from Section 302 to Section 307 IPC, sentenced to ten years rigorous imprisonment. (Paras 1-4)
Issue of Consideration
Whether the courts below could rely on the same eyewitness evidence that was not accepted against other accused to convict the appellant; whether the prosecution could rely on the evidence of defence witness DW5 to convict the appellant; whether the appellant could be convicted under Section 302 IPC simpliciter after the acquittal of co-accused, given the medical evidence attributing the fatal injury to the co-accused.
Final Decision
Appeal partly allowed. Conviction and sentence under Section 302 IPC set aside; appellant convicted under Section 307 IPC and sentenced to rigorous imprisonment for ten years. Appellant directed to surrender to bail bond.
Law Points
- In criminal cases the burden of proving guilt beyond reasonable doubt rests on the prosecution
- and if prosecution evidence is discarded
- conviction cannot be based solely on evidence of defence witnesses
- however
- defence evidence can be used to lend assurance to conclusions already drawn from prosecution evidence. Partial rejection of eyewitness testimony against some accused does not render it totally unreliable
- it may be accepted against others. After acquittal of a co-accused
- Section 34 IPC has no application
- the remaining accused is liable only for his own act. Firing at a victim with a rifle causing non-fatal injuries
- while the fatal injury is attributed to an acquitted co-accused
- constitutes attempt to murder under Section 307 IPC
- not murder under Section 302 IPC.
